DIFFERENCE BETWEEN LEGAL SEPARATION AND DIVORCE

The main difference is that divorce ends the marriage.  Legal separation does not.

When someone files a petition for dissolution – or divorce – what they are asking the court to do is formally and permanently terminate the marital status.  In other words, end the marriage and everything associated with it.

With legal separation, the person who files for it is NOT saying end the marriage, rather they are asking the court to stop the community portion of the marriage.

What does that mean?  In California all assets, debts, earnings and property acquired by the parties during the period of marriage are considered “community” – meaning that the general rule is they are to be shared equally between the parties.  There are some exceptions to this general rule, However, the general rule is a good guide to follow in most cases.

With a legal separation, all that is ended is the community – from that point forward, in most cases, the effect is that all assets, debts, property and earnings acquired by the parties are now considered to be their separate property. However, the marriage is still in effect, and the community nature of assets, debts and property acquired before the order of legal separation remains unchanged – all that changes is the character of assets and debts acquired after the legal separation.

Once a legal separation is entered by the Court, what can happen next?  First…nothing.  The parties can merely continue to be married but have the status of legally separated for as long as either or both of them desire to.

Or, at some point after the legal separation, one of the parties can file for dissolution or divorce; again, a request that the Court terminate the entire marriage, not just the community.

Or, at some point, the parties can request that the court reverse the legal separation and return them to the full community status they had prior to the legal separation.

So, whether to seek a dissolution or legal separation is really a question of what you want to achieve – at least in the short term.  If you are certain that you want to end the marriage for good and have no further legal ties to or status with the other party, divorce is likely what you would want to pursue.  If you are not certain you want to end the marriage but you want to separate your future property and debts from the other person, legal separation is likely what you would want to pursue.   In any case, it is always a good idea to consult with an experienced family law attorney before making a decision to make sure that you have considered all the pros and cons and to make sure that you do not disadvantage yourself in the future by making the wrong decision today.